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Acosta v. Legend of Asia, LLC

United States District Court, W.D. Missouri, Western Division

September 11, 2017

R. ALEXANDER ACOSTA, Plaintiff,
v.
LEGEND OF ASIA, LLC et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR CONSENT JUDGMENT

          GREG KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Plaintiff R. Alexander Acosta, Secretary of Labor, United States Department of Labor (the “Secretary”), filed suit against Legend of Asia, LLC (“Legend of Asia”), its owner, Tong Lin, and her husband, Yu Min Xiao for violations of the minimum wage, overtime, and recordkeeping provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.

         Now before the Court is Plaintiff's Motion for Consent Judgment (Doc. 45) against Legend of Asia and Yu Min Xiao. Legend of Asia and Yu Min Xiao consent to this motion. Accordingly, the motion is GRANTED and the Court rules as follows:

         This Judgment encompasses the time period of September 3, 2012, through July 31, 2015, at Legend of Asia, LLC, 1853 SW 7 Hwy, Blue Springs, Missouri, 64014.

         Defendants Legend of Asia, LLC, and Yu Min Xiao, individually (“Defendants”), their officers, agents, servants, employees, and those persons in active concert or participation with them who receive actual notice of this Judgment, are hereby permanently enjoined and restrained from violating the provisions of 29 U.S.C. §§ 215(a)(2) and 215(a)(5) of the FLSA, including in any of the following manners:

         1. Defendants shall not, contrary to 29 U.S.C. §§ 206(a)(1) and 215(a)(2), fail to pay to their employees engaged in commerce or in the production of goods for commerce or employed in their enterprise engaged in commerce or in the production of goods for commerce, wages at rates not less than $7.25 per hour, or any rate subsequently made applicable by amendment to the FLSA.

         2. Defendants shall not, contrary to 29 U.S.C. §§ 207 and 215(a)(2), employ any of their employees in commerce or in the production of goods for commerce, or in its enterprise engaged in commerce or in the production of goods for commerce, for workweeks longer than 40 hours without compensating such employee for his or her employment in excess of 40 hours per workweek at a rate not less than one and one half times the regular rate at which he or she is employed.

         3. Defendants shall not, contrary to sections 29 U.S.C. §§ 211(c) and 215(a)(5) of the FLSA, fail to make, keep and preserve adequate and accurate records of their employees, and of the wages, hours and other conditions and practices of employment maintained by it as prescribed by the regulations issued, and from time to time amended, pursuant to § 211(c) of the FLSA and 29 C.F.R. § 516. Defendants shall make such records available at all reasonable times to representatives of the Secretary.

         4. Defendants shall not classify any employee as exempt from the minimum wage and/or overtime requirements of the FLSA unless that employee is employed in a bona fide executive, administrative, professional, or outside sales position under 29 U.S.C. § 213(a)(1), and as such terms are defined and delimited by the regulations of the Secretary, and unless that employee satisfies the salary level and other requirements to meet one of the exemptions. Defendants shall seek compliance assistance from the Wage and Hour Division of the United States Department of Labor (“Wage and Hour”) prior to classifying any employee as an exempt employee.

         5. Defendants shall provide to each employee a statement or other record containing the hours worked by the employee each workday (for purposes of this paragraph, a “workday” is any fixed period of 24 consecutive hours). Defendants shall include on each such statement or record the telephone number at which to contact Wage and Hour (1-866-487-9243), and a statement, in English as well as any other language that is the primary language of any employee, that such telephone number may be used to make confidential and anonymous complaints about hours worked, wages paid, or other conditions of employment.

         6. Where Defendants employ employees who qualify as “tipped employees, ” as defined by 29 U.S.C. § 203(t), Defendants shall provide written notice to employees of their intent to use the employee's tips as a credit against Defendants' minimum wage obligations. The written notice shall contain the information required by the Secretary's regulation at 29 C.F.R. § 531.59(b). Defendants acknowledge that if they fail to provide such notice, the tip credit may not be claimed, notwithstanding any potential economic harm to the employees.

         7. Where Defendants pay employees wages in the form of “board, lodging, or other facilities, ” as these terms are used in 29 U.S.C. § 203(m), Defendants shall provide written notice to employees of their intent to use the board, lodging, or other facilities as a credit against Defendants' minimum wage and/or overtime obligations. Defendants shall keep and preserve records substantiating the actual costs to Defendants to furnish such board, lodging, or other facilities to the employees.

         8. Defendants shall make, keep and preserve payroll or other records containing:

a. A symbol, letter or other notation that identifies each employee whose wages are determined and paid in part by board, lodging, or other facilities; and
b. The amount per hour the employee is paid in the form of board, lodging, or other facilities.

         9. Defendants shall ensure former employees receive their final paychecks following employment termination or discharge. Defendants shall maintain documentation demonstrating all reasonable, good faith efforts made by Defendants to locate and forward final paychecks to former employees.

         10. Defendants shall maintain a computerized time-keeping system that enables Defendants to accurately record when employees start and stop their work each day. This system shall be put in place at all restaurant locations owned in whole or in part by any of the Defendants. This system shall be put in place within ninety (90) days from entry of this Judgment and Defendants shall provide adequate training to their employees on use of the system. Defendants shall not permit any employee to work prior to clocking in or after clocking out.

         11. Defendants shall have a third party, approved by the Wage and Hour, audit the Defendants' time and payroll recordkeeping practices for compliance with the FLSA once within the first two weeks beginning six months after entry of this Judgment. Defendants shall require the third-party auditor to prepare a written report that contains the auditor's findings on FLSA compliance and any suggestions for improving compliance. Defendants shall make such reports available to Wage and Hour representatives upon request. If the third-party auditor ...


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